Alton v. Robinson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL W. ALTON, JR.,1

Plaintiff,

v.

Case No. 3:17-cv-1230-J-34MCR

SERGEANT RICK ROBINSON,

Defendant.

ORDER

I. Status

Plaintiff Michael W. Alton, Jr., while an inmate of the Florida penal system,2

initiated this action on November 1, 2017, by filing a pro se Civil Rights Complaint Form

(Complaint; Doc. 1). In the Complaint, Alton asserts claims pursuant to 42 U.S.C. § 1983

against Defendant Rick Robinson, a Florida Department of Corrections (FDOC) sergeant.

He states that Robinson violated his Eighth Amendment right when he used excessive

force against Alton at Union Correctional Institution (UCI) work camp on November 7,

2016. As relief, Alton seeks compensatory and punitive damages as well as declaratory

relief.

This matter is before the Court on Defendant Robinson’s Motion for Summary

Judgment (Motion; Doc. 31). Robinson submitted exhibits in support of his summary

1 The Clerk shall correct the docket to add “Jr.” to Alton’s name.

2 The Florida Department of Corrections released Alton from custody on June 21,

2019. See Notice of Change of Address (Doc. 37).

judgment request. See Def. Exs. (Docs. 31-1 through 31-7).3 The Court advised Alton of

the provisions of Federal Rule of Civil Procedure 56, notified him that the granting of a

motion to dismiss or a motion for summary judgment would represent a final adjudication

of this case which may foreclose subsequent litigation on the matter, and gave him an

opportunity to respond to the Motion. See Order (Doc. 5); Summary Judgment Notice

(Doc. 32). Alton responded. See Response and Opposition to Defendant’s Summary

Judgment (Response; Doc. 36). He also submitted exhibits. See P. Exs. (Docs. 36-1

through 36-8). Defendant’s Motion is ripe for review.

II. Plaintiff’s Allegations

In his Complaint, Alton asserts that he was verbally and physically assaulted twice

while housed at the UCI work camp. See Complaint at 5. He states that the FDOC issued

two disciplinary reports against him on November 7, 2016, for possessing tobacco and

negotiables. See id. He avers that corrections officers escorted him to the lieutenant’s

office for questioning, and Defendant Robinson later took him to the visiting park’s

shakedown room where he was verbally reprimanded in an unreasonable manner. See

id. According to Alton, Robinson used his open right hand to strike the left side of Alton’s

face, which forced his head against the wall. See id. He declares that officers escorted

him to the UCI medical unit where they asked health-related questions. See id. at 6. Alton

recounts that he “was afraid to state facts or answer any questions due to possible

retaliation from escorting officers.” Id. He asserts that he instead wrote to his fiancé (Ms.

3 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

2

Baumberger) and explained that Robinson had assaulted him. Id. He states that the

FDOC housed him in a confinement dormitory at the UCI Main Unit where Robinson

stopped by Alton’s cell on November 22nd and stated “quit talking sh[*]t back here or

else.” Id.

According to Alton, officers escorted him to a follow-up medical appointment on

November 23rd, as a result of Baumberger’s phone call. See id. He asserts that the FDOC

released him from the UCI confinement unit and returned him to Robinson’s shift at the

UCI work camp on December 1, 2016. See id. Alton recounts that when he arrived,

officers directed him to report to the main laundry building to receive his personal property.

See id. He recalls that he noticed Robinson through a glass partition as he entered the

dark, unlit building. See id. According to Alton, as he opened the door and partially

entered, an “unknown individual” struck him on the left side of his face. Id. He states that

the darkness hindered his ability to identify his attacker. See id. He avers that he “instantly

retreated” from the incident. Id. Alton believes that Robinson was either the one who

assaulted him or a facilitator in the assault. See id. Alton declares that the FDOC should

not have returned him to the work camp. See id. at 7. According to Alton, he spoke with

Inspector Kevin Snow, who took a recorded statement and assured Alton that he would

try to retrieve the relevant camera footage.

III. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure (Rules(s)), “[t]he court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

3

56(a). The record to be considered on a motion for summary judgment may include

“depositions, documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).4 An issue is

genuine when the evidence is such that a reasonable jury could return a verdict in favor

of the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.

1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)).

“[A] mere scintilla of evidence in support of the non-moving party’s position is insufficient

to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of demonstrating to

the court, by reference to the record, that there are no genuine issues of material fact to

be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

4 Rule 56 was revised in 2010 “to improve the procedures for presenting and

deciding summary-judgment motions.” Rule 56 advisory committee’s note 2010 Amends.

The standard for granting summary judgment remains

unchanged. The language of subdivision (a) continues to

require that there be no genuine dispute as to any material

fact and that the movant be entitled to judgment as a matter

of law. The amendments will not affect continuing

development of the decisional law construing and applying

these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable.

4

1991). “When a moving party has discharged its burden, the non-moving party must then

go beyond the pleadings, and by its own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is a

genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th

Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a

court “must view all evidence and make all reasonable inferences in favor of the party

opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th

Cir. 1994)).

IV. Summary of the Arguments

In the Motion, Defendant Robinson asserts that there are no genuine issues of

material fact, and therefore, the Court should grant summary judgment in his favor. He

states that no reasonable jury could find in Alton’s favor, and therefore, the Motion should

be granted as to Alton’s Eighth Amendment claim. See Motion at 6-9. He also maintains

that he is entitled to qualified immunity. See id. at 15-16. Additionally, Robinson asserts

that Alton is not entitled to compensatory and punitive damages under 42 U.S.C. §

1997e(e) because he has not alleged any physical injury resulting from Defendant’s acts

and/or omissions. See id. at 9-14. Finally, he asserts that the Eleventh Amendment bars

Alton’s claim for monetary damages against him in his official capacity. See id. at 16-17.

5

In his Response, Alton maintains that Defendant Robinson is not entitled to qualified

immunity. See Response at 4-5. He states that he has met the physical-injury requirement

in that he suffers hearing loss in the left ear as well as psychological injuries, such as

post-traumatic stress and recurring nightmares. See id. at 3, 8.

V. Law

A. Eighth Amendment

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the

defendant deprived him of a right secured under the United States Constitution or federal

law, and (2) such deprivation occurred under color of state law. Salvato v. Miley, 790 F.3d

1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)

(per curiam) (citation omitted); Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010)

(per curiam) (citations omitted). Additionally, the Eleventh Circuit requires “‘an affirmative

causal connection between the official’s acts or omissions and the alleged constitutional

deprivation’ in § 1983 cases.” Rodriguez v. Sec’y, Dep’t of Corr., 508 F.3d 611, 625 (11th

Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). In the

absence of a federal constitutional deprivation or violation of a federal right, a plaintiff

cannot sustain a cause of action against the defendant.

With respect to the appropriate analysis in an Eighth Amendment excessive use

of force case, the Eleventh Circuit has explained.

[O]ur core inquiry is “whether force was applied in a good faith

effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1,

112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). In determining

whether force was applied maliciously and sadistically, we

look to five factors: “(1) the extent of injury; (2) the need for

6

application of force; (3) the relationship between that need

and the amount of force used; (4) any efforts made to temper

the severity of a forceful response; and (5) the extent of the

threat to the safety of staff and inmates[, as reasonably

perceived by the responsible officials on the basis of facts

known to them]...” Campbell v. Sikes, 169 F.3d 1353, 1375

(11th Cir. 1999) (quotations omitted).

McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir. 2013) (per curiam). “When

considering these factors, [courts] ‘give a wide range of deference to prison officials acting

to preserve discipline and security, including when considering decisions made at the

scene of a disturbance.’” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (per

curiam) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)).

“The Eighth Amendment’s prohibition of cruel and unusual punishments

necessarily excludes from constitutional recognition de minimis uses of physical force,

provided that the use of force is not of a sort repugnant to the conscience of mankind.”

Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal quotations and citations omitted).

“A prisoner may avoid summary judgment, ‘only if the evidence viewed in the light most

favorable to him goes beyond a mere dispute over the reasonableness of the force used

and will support a reliable inference of wantonness in the infliction of pain.’” Stallworth v.

Tyson, 578 F. App’x 948, 953 (11th Cir. 2014) (quoting Brown v. Smith, 813 F.2d 1187,

1188 (11th Cir. 1987)). Notably, a lack of serious injury is relevant to the Eighth

Amendment inquiry. See Smith v. Sec’y, Dep’t of Corr., 524 F. App’x 511, 513 (11th Cir.

2013) (per curiam) (quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam)). The

United States Supreme Court explained.

“[T]he extent of injury suffered by an inmate is one factor that

may suggest ‘whether the use of force could plausibly have

7

been thought necessary’ in a particular situation.” Ibid.[5]

(quoting Whitley, supra, at 321, 106 S.Ct. 1078).[6] The extent

of injury may also provide some indication of the amount of

force applied. As we stated in Hudson, not “every malevolent

touch by a prison guard gives rise to a federal cause of

action.” 503 U.S. at 9, 112 S.Ct. 995.... An inmate who

complains of a “‘push or shove’” that causes no discernible

injury almost certainly fails to state a valid excessive force

claim. Id., at 9 (quoting Johnson v. Glick, 481 F.2d 1028, 1033

(2d Cir. 1973)).[7]

Injury and force, however, are only imperfectly correlated, and

it is the latter that ultimately counts. An inmate who is

gratuitously beaten by guards does not lose his ability to

pursue an excessive force claim merely because he has the

good fortune to escape without serious injury.

Wilkins, 559 U.S. at 37-38.

B. Qualified Immunity

The Eleventh Circuit has stated:

The qualified-immunity defense reflects an effort to

balance “the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555

U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The

doctrine resolves this balance by protecting government

officials engaged in discretionary functions and sued in their

individual capacities unless they violate “clearly established

federal statutory or constitutional rights of which a reasonable

person would have known.” Keating v. City of Miami, 598 F.3d

753, 762 (11th Cir. 2010) (quotation marks and brackets

omitted).

5 See Hudson, 503 U.S. at 7.

6 See Whitley v. Albers, 475 U.S. 312 (1986).

7 See Johnson, 481 F.2d at 1033 (“Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional

rights.”).

8

As a result, qualified immunity shields from liability “all

but the plainly incompetent or one who is knowingly violating

the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002). But the doctrine’s protections do not extend to one

who “knew or reasonably should have known that the action

he took within his sphere of official responsibility would violate

the constitutional rights of the [plaintiff].” Harlow v. Fitzgerald,

457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)

(internal quotation marks and alteration omitted).

To invoke qualified immunity, a public official must first

demonstrate that he was acting within the scope of his or her

discretionary authority. Maddox v. Stephens, 727 F.3d 1109,

1120 (11th Cir. 2013). As we have explained the term

“discretionary authority,” it “include[s] all actions of a

governmental official that (1) were undertaken pursuant to the

performance of his duties, and (2) were within the scope of his

authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)

(internal quotation marks omitted). Here, it is clear that

Defendant Officers satisfied this requirement, as they

engaged in all of the challenged actions while on duty as

police officers conducting investigative and seizure functions.

Because Defendant Officers have established that they

were acting within the scope of their discretionary authority,

the burden shifts to [the plaintiff] to demonstrate that qualified

immunity is inappropriate. See id. To do that, [Plaintiff] must

show that, when viewed in the light most favorable to him, the

facts demonstrate that Defendant Officers violated [Plaintiff’s]

constitutional right and that that right was “clearly established

... in light of the specific context of the case, not as a broad

general proposition[,]” at the time of Defendant officers’

actions. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,

150 L.Ed.2d 272 (2001), overruled in part on other grounds by

Pearson, 555 U.S. 223, 129 S.Ct. 808. We may decide these

issues in either order, but, to survive a qualified immunity

defense, [the plaintiff] must satisfy both showings. Maddox,

727 F.3d at 1120-21 (citation omitted).

Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017).

9

VI. Analysis8

A. Excessive Use of Force

Defendant Robinson asserts that he is entitled to summary judgment as to Alton’s

Eighth Amendment claim against him. He submitted a Declaration in support of his

summary judgment request. See Def. Ex., Doc. 31-1 at 1, Declaration of Sergeant Rick

Robinson (Robinson Decl.). In his Declaration, Robinson states in pertinent part:

I have reviewed the allegations made in the Complaint (Doc.

1) in case 3:17-cv-1230-MMH-MCR by inmate Michael Alton.

The allegations are untrue. At no time did I escort Inmate Alton

to the visiting park’s shakedown room on November 7, 2016,

and strike him in the head, forcing his head against the wall.

Also, at no time did I strike or have anyone else strike Inmate

Alton on December 1, 2016. Nor did I witness or was I aware

of anyone else striking Inmate Alton. I did not go to Inmate

Alton’s cell while he was in confinement and state to him, quit

talking shi[*]t back here or else.

Id. (enumeration omitted).

The chronology of events on which Alton bases his Eighth Amendment claim is

as follows. In his Complaint, Alton asserts that Defendant Robinson verbally

reprimanded and assaulted him on November 7, 2016 (the first incident), and either

assaulted him or participated in facilitating an assault upon him (the second incident) on

December 1, 2016. See Complaint at 5-6.9 As to the first incident, Alton states that

8 For purposes of summary judgment, the Court views the evidence and all

reasonable inferences therefrom in the light most favorable to Plaintiff. Thus, the facts

described in the Court’s analysis may differ from those that ultimately can be proved.

9 See Stallworth v. Tyson, 578 F. App’x 948, 950 (11th Cir. 2014) (citations

omitted) (“The factual assertions that [plaintiff] made in his amended complaint should

10

Robinson used his open right hand to strike the left side of Alton’s face, which caused

Alton’s head to hit the wall. See id. at 5. He states that corrections officers escorted him

to the medical unit, however, he was too fearful of potential retaliation to answer

questions or provide facts. See id. at 6. According to Alton, he instead reported the

details of the first incident to Ms. Baumberger. Id.; see P. Ex., Doc. 36-6 at 4, Letter.

Baumberger contacted Inspector General Snow on November 23, 2016 and reported

that Robinson had assaulted Alton. See Def. Ex., Doc. 31-4 at 15; P. Exs., Docs. 36-7

at 1, 36-8 at 1. Baumberger’s tip initiated an FDOC investigation as well as Alton’s follow-

up medical appointment, at which there were neither reported nor visible injuries. See P.

Ex., Doc. 36-1 at 1-2, Emergency Room Record and Diagram of Injury; Def. Ex., Doc.

31-4 at 13-14.

As to the second incident, Alton states that he saw Robinson through a glass

partition as he entered the laundry building. See Complaint at 6. According to Alton, an

“unknown individual” struck him on the left side of his face. Id. Alton could not and still

cannot identify his attacker. See id.; Response at 7. Nevertheless, given the

circumstances, he “believes” Robinson assaulted him or “facilitated” the assault.

Complaint at 6; Response at 7. That same day, Nurse Downs examined Alton, and noted

a one-centimeter laceration with dried blood on his left earlobe and no visible injuries to

his teeth, lips, or tongue. See P. Ex., Doc. 36-2 at 1-2, Emergency Room Record and

Diagram of Injury; Def. Ex., Doc. 31-4 at 11-12. Nurse Downs also documented that Alton

have been given the same weight as an affidavit, because [plaintiff] verified his complaint

with an unsworn written declaration, made under penalty of perjury, and his complaint

meets Rule 56’s requirements for affidavits and sworn declarations.”).

11

complained about left-mouth pain. P. Ex., Doc. 36-2 at 1; Def. Ex., Doc. 31-4 at 1. On

December 13, 2016, Alton provided the following facts in a written statement as part of

the investigation surrounding his request for protection.

On Nov. 7th I was assaulted by Sgt. R. Robinson at the work

camp in the VP [(visiting park)] shakedown room shortly after

I was found [with] tobacco and cash in Bravo Dorm.[10]

On Dec 1st once released from confinement in O-dorm I

returned to the work camp, walked into the Main Laundry[,]

told to pick my property up and opened the door facing the

chow hall and was struck 3 times in the left side of my head

by [an] unknow[n] inmate and Sgt. Robinson to my left. I

blacked out[,] went to LT office wanting no problems. I [a]m in

fear for myself of Sgt. Robinson and inmates at the work

camp. [I]n fear of more retaliation.

Def. Ex., Doc. 31-3 at 10, Incident Report.

Upon review of the record, Defendant’s Motion is due to be denied. At a minimum,

the record before the Court reflects genuine issues of material fact as to whether

Defendant Robinson used force upon Alton on November 7, 2016, and either used force

upon Alton or facilitated another person’s assault upon Alton on December 1, 2016. The

parties present markedly different accounts as to whether any force was used during the

two incidents and what may have motivated Robinson as he encountered (or allegedly

encountered) Alton on the two occasions. Alton states that Defendant Robinson struck

him on November 7th, and either struck him on December 1st or facilitated someone

else’s attack on Alton. According to Alton, the first incident occurred as Robinson

reprimanded him about his disciplinary infractions, and the second incident happened

10 See Def. Exs., Docs. 31-2, 31-3, Disciplinary Reports for possession of

negotiables and tobacco.

12

after Robinson’s November 22nd threat and upon Alton’s return to Robinson’s shift at

the work camp. In contrast, Defendant Robinson denies that he struck Alton on

November 7th, and further denies that he struck or had anyone else strike Alton on

December 1st. See Robinson Decl.

The United States Supreme Court has acknowledged that the extent of the injury

is a factor that may provide some evidence of the amount of force applied and whether

the use of force was necessary under the specified circumstances. See Wilkins, 559

U.S. 34 at 37-38. However, a court ultimately should decide an excessive force claim

based on the nature of the force used rather than the extent of the injury. Id. at 38. Alton’s

medical records reflect that there were no reported or visible injuries at the November

23, 2016 examination. See P. Ex., Doc. 36-1 at 1-2; Def. Ex., Doc. 31-4 at 13-14. And,

on December 1st, the nurse noted a one-centimeter laceration with dried blood on his

left earlobe and no other visible injuries. See P. Ex., Doc. 36-2 at 1-2; Def. Ex., Doc. 31-

4 at 11-12. Nevertheless, Alton maintains that he suffers hearing loss in his left ear, see

Response at 8, and that the medical staff documented his hearing loss on August 16,

2018, see P. Exs., Docs. 36-3; 36-5 at 8-9. Here, the parties offer significantly different

accounts of Defendant Robinson’s motivation and involvement in the November 7th and

December 1st incidents. On this record, the Court finds that there remain genuine issues

of material fact with respect to Plaintiff’s Eighth Amendment claim against Defendant

Robinson. As such, Defendant’s Motion is due to be denied.

13

B. Eleventh Amendment

To the extent Defendant Robinson asserts that he is entitled to Eleventh

Amendment immunity, the Court agrees.

The Eleventh Amendment provides that “[t]he Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. It is well established that, in the absence of

consent, “a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the

Eleventh Amendment.” Papasan v. Allain, 478 U.S. 265, 276,

106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quotation omitted).

The Eleventh Amendment also prohibits suits against state

officials where the state is the real party in interest, such that

a plaintiff could not sue to have a state officer pay funds

directly from the state treasury for the wrongful acts of the

state. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,

1336 (11th Cir. 1999)....

Hayes v. Sec’y, Fla. Dep’t of Children & Families, 563 F. App’x 701, 703 (11th Cir. 2014)

(per curiam).

The Eleventh Circuit has stated:

It is clear that Congress did not intend to abrogate a

state’s eleventh amendment immunity in section 1983

damage suits. Quern v. Jordan, 440 U.S. 332, 340-45, 99

S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979). Furthermore,

after reviewing specific provisions of the Florida statutes, we

recently concluded that Florida’s limited waiver of sovereign

immunity was not intended to encompass section 1983 suits

for damages. See Gamble,[11] 779 F.2d at 1513-20.

Zatler, 802 F.2d at 400. Accordingly, in Zatler, the court found that the FDOC Secretary

was immune from suit in his official capacity. Id. Insofar as Alton may be seeking

11 Gamble v. Fla. Dep’t of Health & Rehab. Serv., 779 F.2d 1509 (11th Cir. 1986).

14

monetary damages from Defendant Robinson in his official capacity, the Eleventh

Amendment bars suit. Therefore, Defendant Robinson’s Motion is due to be granted as

to Alton’s claim for monetary damages from him in his official capacity.

C. Physical Injury Requirement

42 U.S.C. § 1997e(e)

Next, the Court turns to Defendant’s assertion that Alton is not entitled to

compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he has not

alleged any physical injuries that are more than de minimis, resulting from Defendant’s

acts and/or omissions. In Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), the Eleventh

Circuit Court of Appeals addressed the availability of compensatory and punitive

damages as well as nominal damages in suits brought by prisoners under § 1983. The

Eleventh Circuit stated:

The PLRA places substantial restrictions on the judicial relief

that prisoners can seek, with the goal of “reduc[ing] the

number of frivolous cases filed by imprisoned plaintiffs, who

have little to lose and excessive amounts of free time with

which to pursue their complaints.” Al-Amin v. Smith, 637 F.3d

1192, 1195 (11th Cir. 2011) (quoting Napier v. Preslicka, 314

F.3d 528, 531 (11th Cir. 2002)). The section of the Act at issue

here, 42 U.S.C. § 1997e(e), reads this way:

No Federal civil action may be brought by a

prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional

injury suffered while in custody without a prior

showing of physical injury or the commission of

a sexual act....

This Court has held that § 1997e(e) applies to all federal civil

actions, including constitutional claims brought under § 1983.

See Harris v. Garner (Harris II), 216 F.3d 970, 984-85 (11th

Cir. 2000) (en banc)....

15

In this case, [Plaintiff] did not allege any physical injury

.... Nevertheless, he sought “compensatory . . . punitive, and

nominal damages” from [Defendant]. Under the statute and

our caselaw, an incarcerated plaintiff cannot recover

either compensatory or punitive damages for

constitutional violations unless he can demonstrate a

(more than de minimis) physical injury. See Al-Amin, 637

F.3d at 1198 (punitive); Harris v. Garner (Harris I), 190 F.3d

1279, 1286 (11th Cir. 1999) (compensatory), reh’g en banc

granted and opinion vacated, 197 F.3d 1059 (11th Cir. 1999),

opinion reinstated in relevant part, 216 F.3d 970. However,

we have never had the opportunity in a published opinion to

settle the availability of nominal damages under the PLRA.

We do today, and we hold that nothing in § 1997e(e) prevents

a prisoner from recovering nominal damages for a

constitutional violation without a showing of physical injury.

Brooks, 800 F.3d at 1307-08 (emphasis added). Thus, to satisfy § 1997e(e), a prisoner

must assert physical injury that is more than de minimis. However, the injury does not

need to be significant. See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App’x 555, 557

(11th Cir. 2014) (citation omitted); Dixon v. Toole, 225 F. App’x 797, 799 (11th Cir. 2007).

Taking Alton’s allegations as to his injuries as true, he asserts a physical injury that

is greater than de minimis. The physical injury Alton complains about is allegedly the

result of Defendant Robinson’s assaultive behavior. According to Alton, he suffers hearing

loss in the left ear. Alton’s alleged hearing loss, for which he sought medical treatment,

crosses § 1997e(e)’s de minimis threshold. See Thompson, 551 F. App’x at 557 n.3

(describing an approach of asking whether the injury would require a free world person

to visit an emergency room or doctor) (citing Luong v. Hatt, 979 F. Supp. 481, 486 (N.D.

Tex. 1997) (“A physical injury is an observable or diagnosable medical condition requiring

treatment by a medical care professional. It is not a sore muscle, an aching back, a

scratch, an abrasion, a bruise, etc., which lasts even up to two or three weeks.”)). Thus,

16

Defendant's Motion is due to be denied to the extent that the Court finds Alton’s request

for compensatory and punitive damages is not precluded under § 1997e(e) because he

alleges that he suffered a physical injury that is greater than de minimis.

Therefore, it is now

ORDERED:

1. Defendant Robinson’s Motion for Summary Judgment (Doc. 31) is

PARTIALLY GRANTED as to Alton’s claim for monetary damages from him in his official

capacity. Otherwise, the Motion is DENIED.

2. The parties are encouraged to discuss the possibility of settlement and

notify the Court if their efforts are successful. In doing so, Plaintiff and Defendant are

encouraged to maintain a realistic approach in making and/or considering any settlement

offers. If the parties are unable to settle the case privately and want a Magistrate Judge

to conduct a settlement conference, they should notify the Court no later than November

12, 2019.

DONE AND ORDERED at Jacksonville, Florida, this 7th day of October, 2019.

United States District Judge

sc 10/4

C:

Michael W. Alton, Jr.

Counsel of Record

17